1. Citizenship path to be eased for 6 minority groups from 3 nations
Hindus, Sikhs, Parsis, Christians, Buddhists, Jains from Pak., Afghanistan and Bangladesh will be allowed to produce expired passports, visas
The Union government is all set to ease grant of citizenship to members of six minority communities from Pakistan, Afghanistan and Bangladesh whose passports and visas have ceased to be valid during their stay in India.
The Home Ministry is expected to revamp the citizenship portal to accept passports and visas with expired validity as supporting documents to process citizenship application of Hindus, Sikhs, Parsis, Christians, Buddhists and Jains from the three countries, says a government source.
The portal run by the Ministry currently accepts expired passports as supporting documents only for those Hindu and Sikh applicants from Pakistan and Afghanistan who entered India before December 31, 2009.
Hindu Singh Sodha, president of Seemant Lok Sanghathan, which works for the rights of minorities from Pakistan, says even those eligible are affected.
“For a Pakistani Hindu who entered India in 2010, the online system does not accept the expired passport, leading to the application not being accepted. The person or family has to then rush to the Pakistani High Commission in Delhi, which charges a hefty sum to renew the passports and sometimes reject it on flimsy grounds. Though the person is eligible to get Indian citizenship under the 1955 Act, as he or she has spent around 12 years in India, they face hurdles,” Mr. Singh said.
In 2015, the Ministry amended the Citizenship Rules and legalised the stay of migrants belonging to these six communities who entered India on or before December 31, 2014, due to religious persecution, by exempting them from the provisions of the Passport Act and the Foreigners Act even as their passports expired. Though they are exempt from facing any criminal action for illegally staying in India, the online portal still does not accept the expired documents to process their applications. “Changes will be made to the online portal so that foreign passports and visas that have passed their validity can be accepted as a supporting document to apply for citizenship,” the source said. People seeking Indian citizenship either come on long-term visas (LTVs) or pilgrim visas. The LTVs given for five years are considered a precursor to citizenship.
CAA not yet in force
The Citizenship Amendment Act (CAA), 2019, that intends to grant citizenship to undocumented (or illegal) migrants from these six non-Muslim communities from the three neighbouring countries is yet to come into force as the rules that govern the law are yet to be notified. The CAA could have helped the documented minority migrants in fast-tracking their applications as it reduces the mandatory requirement of 11-year aggregate stay in India to five years, to be eligible for citizenship.
According to Mr. Singh, there are 18,000 registered Pakistani Hindus who await citizenship.
According to the Ministry’s report for 2021-22, from April to December 2021, 1,414 citizenship were granted to members of the minority groups from Pakistan, Afghanistan and Bangladesh.
Citizenship (Amendment) Act, 2019
The Bill amended the Citizenship Act, of 1955.
- The Citizenship Act, of 1955 provides various ways in which citizenship may be acquired.
- It provides for citizenship by birth, descent, registration, naturalisation and by incorporation of the territory into India.
- It regulates the registration of Overseas Citizen of India Cardholders (OCIs) and their rights.
- The Act provide that the Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who entered India on or before December 31, 2014, will not be treated as illegal migrants.
- They are also exempted from the Foreigners Act, of 1946 and the Passport (Entry into India) Act, of 1920.
- The 1920 Act mandates foreigners to carry passports, while the 19th Act regulates the entry and departure of foreigners in India.
- The Act allows a person to apply for citizenship by registration or naturalisation if the person meets certain qualifications;
- To obtain citizenship by naturalisation, one of the qualifications is that the person must have resided in India or have been in service of the central government for at least 11 years before applying for citizenship.
- The present act creates an exception for Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, concerning this qualification. For these groups of persons, the 11 years requirement was reduced to five years.
- Citizenship status in India allows citizens of the Indian State to enjoy all civil and political rights.
- The Constitution of India allows for only single citizenship, that is, Indian citizenship. There is no provision for separate state citizenship.
- The other federal states like USA and Switzerland adopted the system of double citizenship.
- In the USA, each person is not only a citizen of the USA but also of the particular state to which he belongs.
- The system of single citizenship provided uniform rights (except in a few cases) for the people of India to promote the feeling of fraternity and unity among them and to build an integrated Indian nation.
Indian Constitution deals with citizenship from Articles 5 to 11 under Part II
- The original constitution only identifies the persons who became citizens of India at its commencement (i.e., on January 26, 1950).
- It does not deal with the problem of acquisition or loss of citizenship after its commencement.
- It empowers the Parliament to enact a law to provide for such matters and any other matter relating to citizenship.
- Parliament has enacted the Citizenship Act (1955), which has been amended from time to time.
- According to the Constitution, the following four categories of persons became the citizens of India at its commencement i.e., on January 26, 1950.
- Persons domiciled in India.
- Persons migrated from Pakistan.
- Persons migrated to Pakistan but later returned.
- Persons of Indian origin residing outside India.
- The Citizenship Act (1955) provides for the acquisition and loss of citizenship after the commencement of the Constitution.
Acquisition of Citizenship
- The Citizenship Act of 1955 prescribes five ways of acquiring citizenship, via, birth, descent, registration, naturalization and incorporation of territory.
- By Birth – A person born in India on or after January 26, 1950, but before July 1, 1987, is a citizen of India by birth irrespective of the nationality of his parents.
- A person born in India on or after July 1, 1987, is considered a citizen of India only if either of his parents is a citizen of India at the time of his birth.
- Further, those born in India on or after December 3, 2004, are considered citizens of India only if both of their parents are citizens of India.
- The children of foreign diplomats posted in India and enemy aliens cannot acquire Indian citizenship by birth.
- By Descent – A person born outside India on or after January 26, 1950, but before December 10, 1992, is a citizen of India by descent, if his father was a citizen of India at the time of his birth.
- A person born outside India on or after December 10, 1992, is considered a citizen of India if either of his parents is a citizen of India at the time of his birth.
- December 3, 2004, onwards, a person born outside India shall not be a citizen of India by descent, unless his birth is registered at an Indian consulate within one year of the date of birth.
- By Registration – Central Government may, on an application, register as a citizen of India any person if he belongs to any of the following categories, namely:-
- A person of Indian origin who is ordinarily resident in India for seven years before making an application for registration.
- A person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration.
- Minor children of persons who are citizens of India.
- By Naturalization – Central Government may, on an application, grant a certificate of naturalization to any person if he possesses the required qualifications, including adequate knowledge of a language specified in the Eighth Schedule to the Constitution.
- The government of India may waive all or any of the above conditions for naturalization in the case of a person who has rendered distinguished service to science, philosophy, art, literature, world peace or human progress.
- By Incorporation of Territory – If any foreign territory becomes a part of India, the Government of India specifies the persons who among the people of the territory shall be the citizens of India.
- Such persons become citizens of India from the notified date.
- For example, when Pondicherry became a part of India, the Government of India issued the Citizenship (Pondicherry) Order (1962), under the Citizenship Act (1955).
- Every Registered and naturalized citizen must take an oath of loyalty to the Constitution of India.
Loss of Citizenship
- The Citizenship Act (1955) prescribes three ways of losing citizenship whether acquired under the Act or before it under the Constitution, via, renunciation, termination and deprivation:
- By Renunciation – Any citizen of India of full age and capacity can make a declaration renouncing his Indian citizenship.
- When a person renounces his Indian citizenship, every minor child of that person also loses Indian citizenship.
- However, when such a child attains the age of eighteen, he may resume Indian citizenship.
- By Termination – When an Indian citizen voluntarily acquires the citizenship of another country, his Indian citizenship automatically terminates.
- This provision, however, does not apply during a war in which India is engaged.
- By Deprivation – It is a compulsory termination of Indian citizenship by the Central government:
- If the citizen has obtained citizenship by fraud.
- The citizen has shown disloyalty to the Constitution of India.
- The citizen has unlawfully traded or communicated with the enemy during a war.
- The citizen has, within five years after registration or naturalization, been imprisoned in any country for two years.
- The citizen has been ordinarily resident out of India for seven years continuously.
2. Missile destroyer INS Mormugao commissioned into Indian Navy
The warship with full-load displacement of 7,400 tonnes is named after the historic port city of Mormugao on the west coast; it is propelled by four powerful gas turbines, has enhanced stealth features and is equipped with BrahMos cruise missiles
In this era of globalisation, almost all nations are dependent on each other in the field of trade and hence rule-based freedom of navigation and security of sea lanes have become more important than ever for stability and economic progress of the world, Defence Minister Rajnath Singh said on Sunday. He was speaking in Mumbai at the commissioning ceremony of INS Mormugao, the second of four stealth guided missile destroyers being built under Project-15B.
Named after the historic port city of Goa on the west coast, Mormugao, the ship was commissioned on the eve of the 60th anniversary of the liberation of Goa from Portuguese rule.
“Economic, political and trade relations between countries are constantly evolving. The COVID-19 pandemic, situation in the Middle East, Afghanistan and Ukraine — it directly or indirectly impacts every country in one way or another,” Mr. Singh said.
During the ceremony, the Commanding Officer, Captain Kapil Bhatia, read out the Ship’s Commissioning Warrant. Subsequently, the Naval Ensign was hoisted onboard for the first time and the Commissioning Pennant broken (unfurled) on the main mast to the National Anthem played by the Naval Band, a Defence Ministry statement said.
“With over 75% indigenous content, it [INS Mormugao] is a testimony to India’s excellence in design and development of warships and a shining example of our growing indigenous defence production capabilities. The warship will meet the present and future needs of our country and of our friendly countries,” Mr. Singh said.
Stating that the country’s growing economy is directly connected to increasing trade, most of which is through sea routes, Mr. Singh said India’s interests are directly linked to the Indian Ocean. India being an important country in this region, the role of the Indian Navy becomes more important in its security, he added.
The 163-metre-long warship has a full-load displacement of 7,400 tonnes. “The overall indigenous content of the project is approximately 75%,” the Navy said.
The contract for construction of four ships under Project-15B was signed in January 2011 at a project cost of about ₹29,643.74 crore. The design of the ships has been developed in-house by the Directorate of Naval Design and constructed by Mazagon Dock Shipbuilders Ltd., Mumbai. They are a follow-on of the Kolkata class destroyers and named after major cities from all four corners of the country — Visakhapatnam, Mormugao, Imphal and Surat. INS Visakhapatnam, was commissioned in 2021. INS Imphal and INS Surat are at various stages of outfitting and trials.
INS Mormugao is propelled by four powerful gas turbines capable of achieving speeds in excess of 30 knots, the Navy said, stating that it has enhanced stealth features resulting in a reduced radar cross section.
These ships are equipped with BrahMos supersonic cruise missiles and long-range surface-to-air missiles. Some of the major indigenised equipment and systems aboard INS Mormugao include surface-to-surface and surface-to-air missiles, torpedo tubes and launchers, anti-submarine rocket launchers and super rapid gun mount, besides combat management system, integrated platform management system, automated power management system, foldable hangar doors, helo-traversing system, close-in weapon system, and bow-mounted SONAR, the Navy said.
3. India pushes for new biodiversity fund
At the COP-15 biodiversity conference in Montreal, the country said the developing nations bear most of the burden of implementing the targets for conservation and therefore, require adequate funds and technology transfer for this purpose; discussions also held on eliminating subsidies
There is an urgent need to create a new and dedicated fund to help developing countries successfully implement a post-2020 global framework to halt and reverse biodiversity loss, India has said at the U.N. biodiversity conference in Canada’s Montreal.
The country said that conservation of biodiversity must also be based on common but differentiated responsibilities and respective capabilities (CBDR) as climate change also impacts nature. As the 196 parties to the Convention on Biological Diversity (CBD) finalise negotiations for a post-2020 Global Biodiversity Framework (GBF) — a new set of goals and targets to halt and reverse biodiversity loss — there have been repeated calls for the inclusion of the CBDR principle in finance-related targets.
Addressing the stocktaking plenary at CBD COP-15, Union Environment Minister Bhupender Yadav said the successful implementation of a post-2020 GBF would depend on the “ways and means we put in place for an equally ambitious resource mobilisation mechanism”.
“There is a need to create a new and dedicated mechanism for the provision of financial resources to developing-country parties. Such a fund should be operationalised at the earliest to ensure effective implementation of the post-2020 GBF by all countries,” the Minister said.
So far, the Global Environment Facility which caters to multiple conventions, including the UNFCCC and UN Convention to Combat Desertification, remains the only source of funding for biodiversity conservation.
At CBD COP15, developing countries have been demanding a new and dedicated biodiversity fund, saying the existing multilateral sources are not up to the task of meeting the requirements of the GBF. Differences with rich countries on the matter had prompted representatives from developing nations to walk out of crucial financing talks last week. India said developing countries bear the burden of implementing the targets for conservation of biodiversity and, therefore require funds and technology transfer for this purpose.
Established as the seventh principle of the Rio Declaration adopted at the Earth Summit in 1992, CBDR is defined as states have common but differentiated responsibilities in view of the different contributions to global environmental degradation.
However, applying the CBDR principle to biodiversity conservation has not been straightforward as compared to climate negotiations, and there have been repeated disagreements between the global north and south.
At CBD COP15, the parties are also trying to achieve a consensus on eliminating subsidies that are harmful to the environment, such as subsidies for fossil fuel production, agriculture, forestry and fisheries, by at least $500 billion annually and using this money for biodiversity conservation.
However, Mr. Yadav said that India does not agree on reducing the agriculture-related subsidy and redirecting the savings for biodiversity conservation, as there are many other national priorities.
Mr. Yadav said biodiversity conservation requires ecosystems to be conserved and restored holistically. It is in this context that ecosystem approaches for conservation of biodiversity need to be adopted rather than going for nature-based solutions, he said.
He said the GBF must recognise the responsibility of the developing countries towards poverty eradication and sustainable development.
This declaration asks the parties to prioritize biodiversity protection in terms of decision-making and recognizing the importance of conservation in protecting human health. The adoption of this declaration aims to create momentum for a new global biodiversity pact.
By this action, the nations have committed themselves to support the development, adoption, and implementation of an effective post-2020 implementation plan, capacity-building action plan for the Cartagena Protocol on bio-safety.
Signatory nations will ensure that the post-pandemic recovery policies, programs, and plans contribute to the conservation and sustainable use of biodiversity, promoting sustainable and inclusive development.
It shines a light on the need for urgent and integrated action to reflect biodiversity considerations in all sectors of the global economy.
The crucial issues – like funding conservation in poorer countries and committing to biodiversity-friendly supply chains have been left to be discussed later.
It is not a binding international agreement.
Previously, Aichi Biodiversity Targets or Strategic Plan for Biodiversity was adopted where governments agreed on 20 targets to slow down biodiversity loss and to protect habitats by 2020.
The declaration stated:
‘Putting biodiversity on a path to recovery is a defining challenge of this decade, in the context of the UN Decade of Action for Sustainable Development, the UN Decade on Ecosystem Restoration and the UN Decade for Ocean Science for Sustainable Development. It requires strong political momentum to develop, adopt and implement an ambitious and transformative post-2020 global biodiversity framework that promotes the three objectives of the Convention in a balanced manner.’
30 by 30 target:
- The declaration referred to the ’30 by 30′ target which is a key proposal being debated at the COP15- 30% of the Earth’s land and oceans to have protected status by 2030.
- Apart from this, the goal to halve the use of chemicals in agriculture and end creating plastic waste is also being debated.
Kunming biodiversity fund:
The Kunming declaration also includes a fund that is being created by China to fund biodiversity protection actions in developing nations. Thye have pledged to pump USD 233 million into the new fund.
The actions for the protection and mitigation of further impact on biodiversity, without doubt, require as much funding as possible, hence this new fund should be welcome as it makes available more resources. But countries have raised their criticisms against this also-
- The presence of the UN Global environment facility (GEF) is deemed sufficient in funding green projects in developing nations.
- China being the biggest polluter in the world right now, this fund has been called a ‘drop in the bucket’ by some countries as well.
What is Climate Financing mentioned in the Kunming declaration?
Climate finance refers to local, national, or transnational financing- drawn from public, private and alternative sources of financing that seek to support mitigation and adaptation actions that will address climate change.
The UNFCC, the Kyoto Protocol, and the Paris Agreement call for financial assistance from parties with more financial resources to those that are less endowed and more vulnerable. This recognizes that the contribution of countries to climate change and their capacity to prevent it and cope with its consequences vary enormously.
Climate finance is needed for mitigation because large-scale investments are required to significantly reduce emissions. Climate finance is equally important for adaptation, as significant financial resources are needed to adapt to the adverse effects and reduce the impacts of a changing climate.
By the principle of “common but differentiated responsibility and respective capabilities” set out in the Convention, developed country parties are to provide financial resources to assist developing country parties in implementing the objectives of the UNFCCC.
The Paris Agreement reaffirms the obligations of developed countries, while for the first time also encouraging voluntary contributions by other Parties.
Developed country parties should also continue to take the lead in mobilizing climate finance from a wide variety of sources, instruments, and channels, noting the significant role of public funds, through a variety of actions, including supporting country-driven strategies and taking into account the needs and priorities of developing country parties.
The other funds facilitating such efforts are-
- The Global Environment Facility (GEF) has served as an operating entity of the financial mechanism since the Convention entered into force in 1994.
- At COP 16, in 2010, Parties established the Green Climate Fund (GCF) and in 2011 also designated it as an operating entity of the financial mechanism.
- Parties have established two special funds – the Special Climate Change Fund (SCCF) and the Least Developed Countries Fund(LDCF), both managed by the GEF and the Adaptation Fund (AF) established under the Kyoto Protocol in 2001.
4. Decriminalisation of offences under GST
Why was there an emphasis on criminal jurisprudence behind the penal provisions in the GST law? Should imposing penal laws be discouraged to attract investors and businesses? What are the recommendations of the 48th GST Council meeting?
The 48th GST Council meeting was held on December 17. The GST Council chaired by Finance Minister Nirmala Sitharaman recommended to decriminalise certain offences under Section 132 of the Central Goods and Services Tax (CGST) Act, 2017. Some other recommendations, for the facilitation of trade, include an increased threshold of the amount of tax for prosecution, reducing the compounding amount in GST etc.
What was previously criminalised under GST?
Since the implementation of GST, there has been a significant increase in tax evasion, with numerous cases of taxpayers using multiple strategies to avoid indirect tax coming to light. Tax authorities are actively using technology and data from e-way bills and GST returns to check evasion. The GST law establishes stringent penalties and guidelines that taxpayers must abide by in order to ensure smooth intrastate or interstate trade of goods and to combat corruption and maintain an effective tax collection system.
The GST Law provides for two different types of penalties. They may be both concurrent and simultaneous. The department authorities have the authority to impose monetary fines and the seizure of goods as penalties for violating statutory provisions. Criminal penalties include imprisonment and fines, which are also provided by GST Law but which can only be awarded in a criminal court following a prosecution.
Sections 122 to 131 of the CGST Act of 2017 contain provisions relating to penalties, while Sections 132 to 138 contains provisions relating to prosecution and compounding. The amount of tax evaded, the amount of Input Tax Credit (ITC) improperly claimed or used, or the amount of refund improperly claimed determines the length of the prison sentence. The aforementioned section further divides offences into those that are cognisable and bailable and those that are not cognisable and bailable. Additionally, it is observed that many non-compliances fall under both categories of penalties, prosecution, and compounding.
Which are the offences under GST law which attract IPC and CrPC provisions?
Under the CGST Act, if a group of two persons or more agree to commit an illegal act like tax evasion, fraud etc. they are held liable under the act of criminal conspiracy. While Section 120A of the Indian Penal Code (IPC), defines criminal conspiracy, Section 120B deals with punishment for the same and Section 46 of the Code of Criminal Procedure (CrPC) deals with how the arrest is made.
Section 69 of the CGST Act provides the power to arrest a person by an order of a commissioner when he believes that a person has committed any offence under Section 132. Section 67 of CrPC states that if a summons is issued outside the local authority, a duplicate copy of that summons should be send to the Magistrate of that outside authority to serve the summons. Section 165 of CrPC deals with the search by the police officer while Section 67 of the CGST Act defines that only an officer not below the rank of joint commissioner can authorise in writing an inspection or search.
Why did Parliament include penal provisions in the GST law?
While replying to the queries of the members of the Rajya Sabha on April 6, 2017, then Union Finance Minister Mr. Arun Jaitley laid emphasis on criminal jurisprudence behind the penal provisions in the GST law. He said that “this (arrest provisions) was thoroughly debated by all the Finance Ministers (Union and States), and there were clearly two views at the very outset. The first view was, ‘why arrest’? The second view was, supposing a man defrauds ₹100 crore, is the State government powerless? And he has no assets to recover it from; what do you do? What is the kind of deterrent? And then, the wisdom of the Council itself was that they chose a middle path….So, up to a fraud of two crore rupees [now five crore rupees, after CGST (Amendment) Act, 2018], no arrest….only in the very big fraud cases where a man forges a complete transaction, it is only then that the arrest is made. And this was the actual division — should you have no arrest or should you have arrest only in rare cases and with very stringent conditions”.
He also explained how compounding of offences and arrest co-exist, “Arrest is for the offence and compounding is when the prosecution is filed, which is the next stage. So, after arrest, you are on bail or not on bail; when the prosecution is filed, there is a separate chapter which gives you the option of asking for a compounding on such payment as the rules may themselves prescribe”.
What has been recommended to decriminalise the GST offences?
The 48th GST Council meeting has recommended various measures to decriminalise the GST offences such as raising the minimum threshold of tax amount for launching prosecution under GST from one crore to two crore, except for the offence of issuance of invoices without supply of goods or services or both, reducing the compounding amount from the present range of 50 to 150% of the tax amount to the range of 25 to 100%, and decriminalising certain offences specified under Section 132 of the CGST Act, 2017, such as obstructing or preventing any officer from doing his duties, deliberate tempering of material evidence and failure to supply information.
What will be the impact of decriminalisation?
The GST is a novel taxation system that includes a number of globally unprecedented features. The law is still developing and is in its infancy which makes the same difficult and uncertain to enforce. There are instances of conflict between court decisions and rulings. The government is still working to streamline the laws. In comparison to the pre-GST era, the GST compliance process with granular reporting is noticeably more onerous.
Therefore, it is important to recognise that imposing penal provisions in an ambiguous ecosystem significantly alters how businesses perceive risk and uncertainty, directly impacting their ability to conduct business. The law already contains sufficient penalties that serve as a deterrent against tax evasion. Investors may be discouraged by the fear of criminal sanctions in small, trivial, and petty matters, even before their engagement in any business activity or investment.
What are the other recommended measures to facilitate trade?
Two major recommendations include refunding unregistered persons and facilitating e-commerce for micro enterprises.
There was no procedure for claim of refund of tax borne by unregistered buyers in cases where the contract/agreement for supply of services, like construction of flat/house and long-term insurance policy, is cancelled and the time period of issuance of credit note by the concerned supplier is over. The Council recommended amendment in CGST Rules, 2017, along with issuance of a circular, to prescribe the procedure for filing application of refund by the unregistered buyers in such cases.
The GST Council in its 47th meeting had also granted in-principle approval for allowing unregistered suppliers and composition taxpayers to make intra-state supply of goods through E-Commerce Operators (ECOs), subject to certain conditions. The Council approved the amendments in the GST Act and GST Rules, along with issuance of relevant notifications, to enable the same. Further, considering the time required for development of the requisite functionality on the portal as well as for providing sufficient time for preparedness by the ECOs, the Council has recommended that the scheme may be implemented from October 2023.
If the above decriminalisation of GST offences are implemented with adequate checks, then prosecution, arrest and imprisonment in GST cases would only be in the rarest of rare cases of hard, habitual, deliberate defaulters and blatant specific fraudulent practices. Other minor grievances may be dealt with in other resolution mechanisms such as Alternate Dispute Resolution (ADR) mechanism, private ruling and mediation, faceless adjudication and appeals, etc.
There were speculations that this GST council meeting will also deliberate on issues like the establishment of a GST Appellate Tribunal, Group of Ministers Reports on Pan Masala, Gutka and Group of Ministers Reports on online gaming, casinos and horse racing. However, none of these were discussed.
5. Editorial-1: India’s crushing court backlogs, out-of-the box reform
Two important voices have weighed in recently on delays in the justice delivery system. The Chief Justice of India D.Y. Chandrachud stated that increasing the number of judges will not demolish the perennial problem of pendency, and that it is difficult enough now to find good High Court judge material. Sushil Kumar Modi, Chairman of Parliament’s Standing Committee on Law and Justice has called for out-of-the-box thinking to solve the problem. Joining the dots, it seems clear that reforms inspired by convention will be pretty much like rearranging the deck chairs on the sinking Titanic. So, do we have other instruments, resources and methods? Here are three which are doable, do not cost much, and yield solutions.
Losing resources from High Court, top court
We have difficulty in finding good talent to be appointed as judges of the High Court, but year after year we see the spectacle of large numbers of experienced and fine judges retiring from the High Courts because they have reached the age of 62. Many have several good years of work left in them which goes waste, much like the richest sediment on river banks getting washed out to sea. All that needs to be done is to continue them with pay and perquisites, and we would have kept the best for their last run of service.
Extend the out-of-box thinking and bring back retired Supreme Court judges to hear admission of Special Leave Petitions. These are appeals filed in hundreds every week against all kinds of orders of lower courts and tribunals across the length and the breadth of the country. They are the biggest clog to justice in the Supreme Court (SC) because they take away half the time of the country’s senior most judges in just reading these mountainous files to decide which minute fraction to hear and dismiss the rest. It is stretching an analogy, but imagine the board of governors of the central bank sitting to examine doubtful currency notes. Many SC judges are in fine fettle at 65 when they retire, and this is better work for them than arbitrations where they become subject to scrutiny by District Judges. And working hours and schedules can be flexibly designed for retired judges to operate. This will enable the current judges to take up important cases in adequate Bench strength and composition. Extend this a little more and have a scheme by which experienced High Court senior advocates sit as judges once a week to hear matters from another State High Court. Many would sign up for the novel and contributing experience, and many would do an excellent job.
Strengthen online justice and mediation
But, the question arises, do we then not need more brick and mortar structures, office infrastructure and an army of staff? No, we do not, and that leads us to the second suggestion. Cultivate online justice. The courts responded splendidly to the COVID-19 shutdown by harnessing online facilities, and, pretty soon, judges and lawyers were quite well-versed in this new medium and welcomed its ease and flexibility. The environment too must have been relieved to be saved of carbon footprint. Unfortunately, we have gone back to the old days of only physical hearings in crowded courtrooms, jettisoning even the benefits of hybrid methods. However, enabling these ad hoc judges to work online from home with minimum support staff is an excellent harness of human and technology resources; it will enable a vast number of cases to be disposed of. And disposed of well, not just disposed off which is what will happen if we appoint inept new judges. The last not only produces injustice galore but needs two good ones to sit in corrective appeal.
Lastly, employ mediation. As a method of dispute resolution, it is far superior to litigation in cases where it can be applied. Those cover a wide range, from personal and matrimonial to civil and commercial and property disputes. India has had a marvellous introductory run with this process; in less than 20 years it has firmly established itself in the court annexed mediation schemes with thousands of trained and enthusiastic lawyers and other mediators handling lakhs of cases. If well planned and executed, mark my words, we have the capacity to lift half the load of such cases off court dockets and onto mediation tables. And, even now, most mediation centres have a success rate of over 50%, several much more. When you realise that it costs much less, takes a fraction of the time litigation does, brings about settlements which all sides can agree to, eliminates appeals, is easy to enforce if necessary, and respects and restores relationships then you know why Singapore’s Chief Justice Sundaresh Menon says, “What’s not to like about mediation?” It is a no-brainer to use mediation as a central peg of reform. What is necessary, however, is to devise and implement sensible policies and strategies to encourage resort to it; and principal amongst these is to make it a professionally attractive career option for mediators who are willing to make a living by being peacemakers. An Indian Mediation Service can be created on the lines of the judicial service. And both incentives and disincentives must be devised for existing and prospective litigants to try this consensual method in good faith. That is all that is necessary; guide the horse to the pond, and more often than not, he will drink from it and savour the nectar of settlement and amity.
Reform can succeed
When we look at the crushing backlogs of Indian courts even the bravest feel daunted, and every Chief Justice probably feels like the Greek mythological figure of Sisyphus vainly, and in eternity, rolling the boulder up the hill only for it to roll back. Conventional reform prescribes more of the same — more judges, more courts, more staff, more infrastructure. But we know that we do not have the resources of either money or men and women. And, surely, we are tired of constant bewailing of the obvious and ever present problems. These suggestions offer a strikingly different approach, one which garners and puts to best use excellent available resources, technological and personal, and can make a telling impact. And they will show that innovation and reform can succeed, a message that is much needed. When necessity and possibility converge, sparks get ignited. To recall Sri Aurobindo in his great writing The Hour of God, the moment has arrived; but will we lose it because the lamp has not been kept trimmed for the welcome and the ears are sealed to the call?